delivered the opinion of the court.

The motion to dismiss filed by the appellee alleges, (1) that the judgment became final because of the dismissal of the appeal taken therefrom and therefore the appeal from the order of the court below refusing a new trial is academic and improper, and (2) because the appellant had not complied with the provisions of the Code of Civil Procedure in regard to a new trial, etc. Finally he moved to strike out the transcript of the evidence because it had not been filed in due time.

*402The appeal from the order refusing a new trial, referred to in the first assignment, is independent of the appeal taken from the. judgment, and if, as was the case here, the dismissal of the appeal from the judgment was due to the fact that the transcript of the record had not been sent up within the statutory period, Campos v. Great Americcm Ins, Co., 35 P. R.R. 935, it is evident that the appeal from the order refusing a new trial should be based and decided on its merits.

The second proposition sets up first that the transcript of the evidence was not filed in time, and without identifying the case the appellee refers to a certain certiorari proceeding against the District Court of Ponce in support of this contention. We presume, however, that the appellee meant to refer to the case decided by this Supreme Court on June 26, 1926, Campos v. District Court of Ponce, 35 P.R.R. 569, but in that case the writ was discharged and the decision was adverse to the'petitioner.

In the second place it is alleged that no statement of the case was filed in time setting forth the particulars, and that the evidence was insufficient. Taking into account the case of Campos v. District Court, supra, and that the appellee has not submitted to this court a clear statement of the various incidents that took place in the lower court in regard to the motion for a new trial, we do not feel inclined to dismiss the appeal in the absence of a sufficient and definite showing in support of the second ground of the motion. However, the ground of the motion for a new trial is not only the insufficiency of the evidence, but all questions that are open for consideration on their merits.

Therefore, the motion to dismiss must be overruled, without prejudice to its being brought up again during the hearing on the appeal.